Does one tell the truth, or not, in court of law?

PAUL Whelan writes in Politicsweb, with reference to Gerrie Nel’s cross-examination of Oscar Pistorious: “I have come to believe that Pistorious is not telling the truth.” The suggestion is that there was an expectation he would.

Whether he did or not is no concern of mine for the purposes of this piece. I am happy to leave that question for Judge Thokozile Masipa to grapple with – now, at least.

Whelan reminded me of a novel I read many moons ago. The name of the author escapes me, but I think the title was Settled out of Court.

The novel is crafted around a man whose honesty was, literally, pathological. If a lie was told in his presence, he would just about pass out.

When he was at high school, the principal noticed this and identified it as a problem.

He summoned the pupil’s parents to discuss it. They were very upset that he made them travel so far, only to tell them that their son was – as they saw it – honest.

Later in life he was framed and convicted for a murder someone else had committed. Because all the evidence was false, he just about passed out with every word each witness uttered.

In the eyes of the court, that was consistent with a man who was overwhelmed by feelings of guilt over something he had done and who could not remain on his feet in the face of the veracity of the evidence produced by the state.

Every court of appeal confirmed his conviction and sentence. His son, however, knew two things: his father was innocent of the murder and he was an honest man.

So he approached a famous barrister and asked him to petition for a retrial. The barrister wanted to know on what grounds.

The young man responded that there must have been a miscarriage of justice. The barrister demanded justification for that view.

The young man pleaded his father’s well-known honesty and argued that if he had committed the murder he would have pleaded guilty. The barrister smiled all-knowingly and admonished the young man: in law, son, when an accused man pleads “not guilty” he is not telling a lie even if he did what he is accused of. All he is saying is: prove it!

That raises the question whether there is any expectation that an accused person will tell the truth. When he takes the witness stand, he will, no doubt, be required to swear or to affirm that he will.

But what does it all mean? I think Professor J C Bekker is a good place to start the inquiry at.

He writes as follows about African traditional courts: “It seems that either party [to a dispute] may use any means in an endeavour to ensure victory. Perjury is no offence, nor is there any legal equivalent for an affirmation to speak the truth.

“A litigant is not necessarily unscrupulous; but if he chooses to be, it causes no great commotion; naturally it does his case no good to be found out.”

I have a life-long bone of contention to chew with Bekker, but before we get to that let’s accept that, as a general proposition, what he says is true. His impression is consistent with the approach which says denial of guilt in legal practice, so far from being a lie, merely amounts to an invitation that your opponent must prove his case.

In this contestation, we understand that the accused person does not just sit back quietly and accept the evidence presented by his opponent to prove his case as invited. He actively complicates the opponent’s task.

So long, in Bekker’s words, as he is not “found out” to be lying in complicating the opponent’s task, the law has no problem with that.

The axe I have to grind with Bekker has always been that the need to bind a witness’s conscience to an oath or affirmation in western courts indicates anticipation that he might be untruthful. The existence of the crime of perjury in western legal systems indicates that the oath or affirmation is not sufficient in itself to guard the witness against straying from the truth.

Therefore it is necessary to threaten him with a criminal sanction if he is unable to resist the temptation to turn his back on the truth. The fact that prisons are not overflowing with perjurers indicates not that witnesses are truthful, but rather that western legal systems have a rhetorical commitment to truth.

Given which, Mr Whelan, I would like to suggest that we are barking up the wrong tree if we expect that there might be several men or women who might adopt a saintly approach to court proceedings.